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IPRs and human rights

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Ever since the US branded inadequate protection of intellectual property rights (IPRs) – patents, copyrights and trademarks – an unfair trade practice under Section 301 of the Trade Act 1974, effective enforcement of IPRs has come to occupy a central stage in international business and commercial relations.

As a rule, present-day bilateral investment treaties (BITs) and free trade agreements (FTAs), particularly those to which the US or other developed nations are a party, contain a chapter on IPR protection. However, the real breakthrough in IPR protection was the conclusion of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) during the Uruguay Round of multilateral trade negotiations, which led to the birth of the World Trade Organisation (WTO) on January 1, 1995.

The TRIPS agreement is certainly not the first multilateral discipline for IPR protection and enforcement. A multilateral IPR regime did exist before TRIPS; for example, the Paris Convention for the Protection of Industrial Property 1883 (patents, industrial designs, etc) and the Berne Convention for the Protection of Literary and Artistic Works (Copyrights) 1886. However, the IPR regime was weak in terms of enforcement, narrow in scope and coverage and had a limited number of members. With a view to strengthening and upgrading the IPR regime, the US government, pushed mainly by the pharmaceutical and entertainment industries, took the lead in incorporating rules on IPRs into the comprehensive multilateral trade discipline that today is known as the WTO.

The TRIPS Agreement provides a more secure basis for IPR protection than previously. However, this also raises questions about the social implications of increased IPR protection, particularly the IPR-human rights relationship. While firms are entitled to reap the benefits of their huge investment in product development and up-gradation, are they also entitled to set monopoly prices or create shortage of essential products like pharmaceuticals in the name of IPR protection?

Article 27 (2) of the Universal Declaration of Human Rights (1948) states that authors of literary, scientific and........

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